Geertson Seed Farms v. Johanns

Monsan- defendants-intervenors/appellants SCHROEDER, Circuit Judge: to et al. (“Monsanto”) Company The Monsanto Kimbrell, DC, for Washington, George large-scale manufacturer of chemical plaintiffs-appellees. products, including pesti- herbicides and

cides. In 1990s it began developing variety of would be resistant leading one of its herbicides. The United Department Agriculture, through States the Animal and Plant Health Inspection (“APHIS”), approved Service genet- MARY and Before: M. SCHROEDER ically alfalfa in modified SMITH, Judges, N. Circuit and RANDY appeal This is an from an FAIRBANK,* Judge. District VALERIE by enjoining entered the district court fu- planting alfalfa, ture Monsanto called alfalfa,” “Roundup Ready pending the preparation by APHIS of an environmen- (“EIS”). tal impact injunc- statement sought by tion plaintiffs was Geertson Family Seeds, Seed Farms and Trask con- farms, ventional alfalfa-seed together with groups, environmental fear they cross-pollination of the new variety alfalfa, thereby other possibly causing ventional alfalfa to disappear. Monsanto licensee, Genetics, Forage Inc. Genetics”), (“Forage intervened on the government side of the defendants. Mon- santo, Genetics, govern- pursue ment this appeal.

There no are issues of law and there- fore review for abuse of discretion. See Hahn, Idaho Project Watersheds (9th Cir.2002). F.3d We affirm because the district court did not abuse its entering discretion in after holding one on the nature of violation National Environmental (“NEPA”), Policy Act of 1969 42 U.S.C. 4332(C), § two hearings on the relief, reviewing as well documentary extensive submissions relat- * Fairbank, California, sitting by designation. The Honorable Valerie United ed Judge States District for the Central District (“EA”) and its in accordance with NEPA injunc- remedy. The appropriate

ing to EA, time In the regulations. to the implementing in duration tion is limited The exis- the EIS. complete pollinated necessary explained is disput- is not violation the NEPA bees, tence of insects, and that insect by primarily appeal. ed on as occur- has been documented pollination source. pollen 2 miles from the ring up to Background ge- possible threat of regard to the With crop Ready alfalfa is an alfalfa Roundup non-genetically en- contamination of netic engineered by Mon- genetically alfalfa, it that the Na- explained gineered glypho'sate, which tolerant of to be santo Program mandates buffer Organic tional in its herbicide ingredient active production opera- organic around genet- zones particular lines Roundup. The at issue tions, alfalfa that are of which are decided the size ically engineered as events J101 designated certifying producer agent here were and the organic alfalfa”). Monsan- Ready (“Roundup J163 EA case-by-case basis. The conclud- on a rights to property to owns the intellectual unlikely that it was therefore ed licenses the Ready alfalfa and Roundup Ready sig- alfalfa would have a Roundup Genetics, who is technology farming. impact organic nificant on Ready al- Roundup developer of exclusive comments, 520 of APHIS received 663 falfa seed. petition and 137 of opposed which States APHIS, of the United a division it. Most of the comment- supported which the au- has Department Agriculture, growers producers and seed ing alfalfa or- introduction of thority regulate “the they said there was supported produced or ganisms products altered and alfalfa, and Round- demand weed-free plant are engineering that through genetic farmers a Ready provide alfalfa would up or plant pests,” pests or are believed be by allowing option new for weed control 7 See C.F.R. “regulated articles.” after weeds apply farmers to herbicide 340.0(a)(2) initially clas- § & n. 1. APHIS Most of the academic germinated. have Ready regulat- alfalfa as a Roundup sified agricultural support indus- professionals, petition ed article. Monsanto submitted tries, who com- growers and associations requesting nonregulated sta- April 2004 petition as well. supported mented and J163. tus for events J101 who included Opponents petition, it could take options: APHIS had three growers, organic and conventional action, Roundup Ready in which case no gene trans- cited concerns that inadvertent regulated continue to be alfalfa would occur, foreign mission would article; unconditionally deregulate it could may accept products domestic markets alfalfa, which re- Roundup Ready would guaranteed non-ge- that cannot be finding of no to make quire They urged a full netically engineered. partially or it could significant impact; through an EIS alfalfa, environmental evaluation Ready either deregulate Roundup analyze environmental ef- by some but not all of the lines that would approving involved, petition but approving or Natural fects of all the alternatives. See imposing geographic Winter, restrictions. Council, Inc. v. Res. Def. Cir.2008) (“NEPA’s (9th 658, proce- a notice in the Federal published agen- requirements mandate that dural advising Register November at the environmental cy take a ‘hard look’ soliciting public petition of Monsanto’s actions.”), overruled on consequences of its explained comments. It that APHIS Natural Res. grounds by Assessment other Winter prepared an Environmental — Council, Inc., U.S.-, 129 S.Ct. also allowed all Roundup Ready alfalfa Def. (2008). 365, 172 L.Ed.2d 249 that had been planted since the deregula- tion grown, harvested, decision to be On the basis of the EA and after consid- sold without restriction. received, ering the comments APHIS in finding significant June 2005 made a of no 2007, In April the court held a hearing impact. 36,917, 36,918 Fed.Reg. See 70 on re- (June 2005). It therefore concluded lief. sought enjoin Plaintiffs all future EIS, that it did not prepare need to and planting alfalfa, of Roundup Ready as well unconditionally deregulated Roundup as the harvesting any Roundup Ready Ready alfalfa. alfalfa seed already planted, pending the Plaintiffs filed in February this action completion of an EIS and a new decision 2006, alleging violations NEPA and oth- deregulation; they requested also er federal statutes. The district court first publication of the location of Roundup considered whether APHIS had violated Ready alfalfa crops. Defendants asked NEPA. After a on plaintiffs’ and planting forward, go but not uncondi- defendants’ motions for summary judg- tionally. At the remedy stage, APHIS ment, the district granted plaintiffs’ agreed for the first any time that future February motion in holding that planting subject should be to certain condi- APHIS had violated by deregulat- NEPA tions, including requiring isolation dis- ing Roundup Ready alfalfa without first tances from crops other and requiring cer- preparing an EIS. The court ruled APHIS tain harvesting conditions to minimize required had failed to take the “hard look” gene flow to non-genetically engineered at whether and to what extent the uncondi- alfalfa seeds. tional deregulation of Roundup Ready al- The district court considered voluminous falfa would genetic lead to contamination sides, submissions from both non-genetieally of engineered alfalfa. The including the detailed declarations of mul- district court then turned to the issue of an tiple witnesses regarding the scope per- of appropriate remedy for the violation. injunctive manent relief pa- and scientific Monsanto and Forage Genetics inter- pers on the factual issues involved. The in vened the action at the remedies phase. parties’ experts disagreed over virtually They argued that growers had already every factual issue relating possible to en- purchased Roundup Ready alfalfa in seed harm, vironmental including the likelihood preparation spring season, for the planting genetic of contamination and why some underway which was and would ending be contamination had already occurred. De- soon, and that it would be difficult for fendants’ evidence included declarations growers those purchase to other seed in testimony and live by Forage Genetics’ plant time to it. hearing After argument, president, McCaslin, Mark declarations of the court preliminary injunction entered a official, Hoffman, APHIS Neil and a 12, on March 2007. The preliminary in- declaration a from scientist Colorado junction enjoined all planting of Roundup State University, Hammon, Bob who had Ready alfalfa and all sales Roundup of study sponsored conducted a by Forage Ready 30, alfalfa 2007, seed after March pollen Genetics on movement from alfalfa- pending the issuance of a permanent in- junction. by seed fields bees. Plaintiffs’ This allowed evidence farmers who were prepared plant to included Hammon’s Roundup Ready study, they alfalfa which ar- immediately, and already pur- gued supports who had their position, as well as seed, chased the do so. The growers declarations from seed whose future hearing enjoining the a further before contaminated with crops had been Ready gene who Roundup planting. and scientists likely is genetic that contamination opined Injunction Scope of the Permanent to occur. that the Appellants argue injunc- permanent The court entered injunctive in because ordering erred relief a middle May adopted in It tion irreparable injury improperly presumed it determining appropriate in the course of the traditional four- applying instead remedy, enjoining planting new but refus- test for of a permanent factor the issuance enjoin harvesting already-planted ing to of injunction, required eBay as under v. Mer- Roundup Ready alfalfa. It declined L.L.C., cExchange, 547 U.S. 126 S.Ct. the issues hold further resolve (2006). They argue 164 L.Ed.2d 641 in the it that said should resolve that, result, injunc- aas the district court’s carefully defen- reviewing EIS. “After because court did tion overbroad the evidence, including the dants’ voluminous potential consider likelihood in the inter- support evidence submitted Ready if Roundup plant- harm alfalfa was plaintiffs’ as well evi- surreply, venors’ subject mitigation pro- ed measures dence, permit the Court declines to posed APHIS. Ready expansion Roundup To obtain analysis market conducts the while APHIS “ ‘(1) relief, plaintiff must show prepared it should have it allowed (2) irreparable injury; has suffered non-permitted introduction law, remedies available at such as mone crop first instance.” tary damages, inadequate compen are enjoined Accordingly, the district court (3) injury; that, considering for that sate Roundup Ready alfalfa after planting all hardships the balance of between the 30, 2007, comple- pending March APHIS’s defendant, plaintiff remedy equity tion of an EIS and its decision on the (4) warranted; public inter deregulation petition. The district court by permanent est would not disserved rejected proposed by conditions ” injunction.’ Cheyenne N. Tribe v. Nor genetic found that (9th Cir.2007) ton, 836, (quot 503 F.3d 843 tamination occurred had when similar 1837). 391, ing eBay, 547 at 126 U.S. S.Ct. place pursuant Forage ditions were in to balancing of applies This traditional harms Ready Roundup Genetics’ contracts with in the environmental context. Forest Con court, growers. The district howev- Serv., v. 66 servation Council U.S. Forest er, rejected request also the Plaintiffs’ 1496(9th 1489, Cir.1995); F.3d see also enjoin harvesting Roundup and sale McNair, 981, Ready already Lands Council v. 537 F.3d alfalfa seed had been (9th Cir.2008) (en banc) (“Our planted. The court deferred to 1005 law instead adopted “the condi- relevant not ... a balance does allow us abandon proposed by tions APHIS.” just analysis potential of harms because a issue.”). at injury environmental In de Defendants, joined by Mon- intervenors termining scope injunction, (collectively, santo and Genetics “ ” latitude,’ court High district has ‘broad “appellants”), appeal injunction, argu- Blackwell, Sierra Hikers Ass’n v. 390 F.3d broad, govern- ing is too but neither the (9th Cir.2004) 630, 641 Natural (quoting question ment nor intervenors now Marine, Inc., v. Sw. 236 Res. Council They dis- existence of a NEPA violation. Def. “ 985, (9th Cir.2000)), F.3d 999 and it ‘must pute only injunction, equities parties whether the have balance the between the district should held give regard public due to the inter- grant deny injunctive whether to or relief ” Tribe, est,’ Cheyenne N. 503 F.3d at 842- rests within equitable discretion of the Sierra, 642). 43(quoting High 390 F.3d at courts, and that such discretion must be exercised consistent with tradi- Supreme recog The Court has principles tional of equity....” Id. that “the nized balance of harms will usu ally injunction favor the issuance of an Here, the record demonstrates that protect injury the environment” if is found the district court applied the traditional “[ejnviron sufficiently likely to be because test, required four-factor by eBay, before injury, nature, mental its can seldom.be issuing It expressly recog adequately by money damages remedied injunction nized that an does not “automat often permanent long and is or at least of ically issue” when a NEPA violation is i.e., duration, irreparable.” Amoco Prod. found and said that required was Gambell, 531, 545, v. Vill. Co. 480 U.S. “engage in the (1987). traditional balance 1396, harms S.Ct. 94 L.Ed.2d 542 In Amoco, analysis.” The court then discussed preliminary Court held that a each injunction of the four factors of improperly had been ordered the traditional bal injury to ancing the environment was test and concluded that the equities probable.” “not at all Id. This court has favored an against the future recognized that even when a district court planting of Roundup Ready alfalfa. occurred, finds that a NEPA violation “in respect harm, With the court found ‘unusual circumstances’ an may that genetic organic contamination of withheld, or, likely, more limited in conventional alfalfa already occurred, scope.” Nat’l Parks & Conservation Ass’n and it had occurred while Monsanto and Babbitt, 722, (9th 737 n. 18 Forage Genetics had contractual obli- Cir.2001) (citing Forest Conservation gations in place that were similar to their Council, 1496). at F.3d proposed mitigation measures. It held Supreme Court held in eBay that that such contamination irreparable grant deny injunctive courts cannot or re- environmental harm because contamina- categorically lief in place applying tion cannot be reversed and can- farmers four-factor test. 547 U.S. 126 S.Ct. not replant alfalfa for years two to four 1837. The district court in that case had after contaminated alfalfa has been re- suggested patent holders who license moved. The court also ap- reasoned that their patents do not suffer irreparable pellants would be unable to enforce com- harm. Id. at 126 S.Ct. 1837. The pliance any proposed mitigation Court held that the district court had measures, given government’s admit- erred' in adopting “expansive principles ted lack of resources. The court therefore suggesting injunctive that relief could not presume did not irreparable that harm issue in a broad swath of cases.” It Id. likely was only to occur on the basis of the held that the reversing court of appeals violation; NEPA it concluded that plain- had also erred because it too had applied a tiffs had genetic established that contami- rule, categorical injunctions that patent nation was sufficiently likely to occur so as cases should generally granted once injunctive relief, to warrant broad infringement validity though and are established case, narrower than except injunction in the excep- “unusual under blanket 394, sought by plaintiffs. tional . circumstances.” Id. at See Winter Natu- — (internal Council, Inc., quotation S.Ct. 1837 ral Res. U.S.-, marks omit- Def. ted). 365, (2008). The Court “that held the decision 129 S.Ct. 172 L.Ed.2d 249 non-genetically engi- availability of did the contend the district Appellants demon- neered alfalfa. account the evidence take into not hay-to-hay of likelihood strating that the Cheyenne rely on Northern Appellants hay extremely low because is transmission injunc- narrower that a proposition for the crops to bloom harvested before case, In that here. tion should be entered the evi- court examined 10%. The district court’s affirmed district weather conditions found that dence and Cheyenne does not Northern Id. at 846. harvesting hay farmers from prevent could There, the case. a reversal this support bloom, testimony of citing the 10% (“BLM”) Management Land Bureau of The district president. Forage Genetics’ failed because its EIS violated NEPA clearly erroneous. finding was not court’s develop- method of study to an alternative irrep- considering the likelihood After the BLM plaintiffs wanted ment that the next considered injury, the court arable at 844. The consider. See id. to The harm to hardships. the balance pro- to one method injunction permitted economic, the court and appellants was activity pending other prohibited ceed and Ready alfalfa ac- Roundup reasoned NEPA. Id. held compliance full with We only Forage Genetics’ counted for 15% injunction not court’s was that the district “much, much less of revenue and total That conclusion of discretion. abuse any found that un- It also Monsanto’s.” injunc- support holding that the does not plant- to be storable for appears seed sold of discretion. tion in this case an abuse years. The court’s ing in later requisite not take the “hard APHIS did Ready alfalfa that had Roundup allowed impact any deregu- form of look” at the that was to be already planted been and See Nat. Res. lation on the environment. remain, subject before March 30 planted Council, 688. Defense conditions, only enjoined certain argue that the district Appellants also which demonstrates planting, future deferred to APHIS’s court should have remedy crafted a that accounted the court measures of the proposed interim sides. Monsanto hardships for the both government agency, de- expertise contend that the dis- Forage Genetics failure spite agency’s undisputed now disregarded their financial loss- trict court They rely primarily comply with NEPA. es, the district court considered those but Project, 307 F.3d on Idaho Watersheds simply concluded economic losses However, require and consumers who that case does growers the harm to non-genetically engineered adopt agency’s pro- court to wanted hardships financial to Mon- outweighed the a matter law. In posed measures as grow- their Watersheds, Genetics and santo the terms Idaho to determine ers. protect land and of an from the effects of too much cattle streams finally district court considered grazing pending compliance the BLM’s interest, in the public the fourth factor NEPA, adopted the the district court N. relief. See framework BLM to proposed interim measures Tribe, F.3d at 843. The Cheyenne injury, which the respond to environmental court, recognizing agricultural while represented ap- a “balanced thought court value, that it biotechnology has social held 823, Affirming, Id. at 830-31. proach.” enjoin public in the interest would be has shown said that “the Ninth Circuit Roundup Ready alfal- expanded use of for factual and studied, considerable deference impact fa before its sub- implicating eliminate technical determinations failing potentially to do so could expertise.” Id. at agency stantial fields. APHIS did request not an eviden- Here, agency’s proposed tiary hearing. interim meas- perpetuate system ures would that was The district court reviewed the docu- by found the district court have caused submissions, mentary but it declined to past. harm in the environmental While hearing. hold a further It explained that agency’s response may deserve defer- holding the type evidentiary hearing ence, require Idaho does not Watersheds suggested by the intervenors “would re- adopt automatically. the district court to quire this in engage precisely Court to The court district did not abuse its discre- same inquiry it concluded APHIS failed to choosing reject tion in pro- APHIS’s EIS; do and must do in an defendants are in posed mitigation measures favor of a in effect asking accept this Court to injunction prevent broader more irrepa- truncated EIS without the benefit of the occurring. rable harm from development of and, all the relevant data importantly, without the opportunity for applied The court the traditional district public consideration of comment.” test, rule, balancing categorical and not a The court cited Idaho in Watersheds con- here, injunction in fashioning eBay, see cluding that it did not need to conduct an 1837, U.S. 126 S.Ct. and its inquiry, extensive involving scientific de- factual were clearly conclusions erro- terminations, to determine what interim neous. The district court therefore did not measures are necessary protect the en- abuse its discretion in formulating the vironment [government] “while the con- remedy. ducts in studies order to very make the Evidentiary Hearing Lack of an same scientific determinations.” 307 F.3d also, Forage Monsanto and Genetics ar- at 831. gue that in the district court erred declin- Monsanto and Genetics are ing evidentiary hearing to hold before correct that generally, a court entering the permanent The must hold an hearing before already hearing district court had held a issuing a permanent injunction unless the required, whether EIS was party right adverse has waived its to a testimony during hearing heard March undisputed. or the facts are See from Forage president Genetics’ on the United States v. Corp., 253 F.3d preliminary injunctive relief. Microsoft 34, 101-03(D.C.Cir.2001); Charlton v. Es Monsanto and Forage request- Genetics Charlton, (9th tate ed the district court hold an evidentia- Cir.1988). The district did not be ry hearing issuing permanent lieve any defendants had established mate injunction could, so that the district court rial issues of fact that in dispute were in court, by as described “assess the Rather, the case before the court. viability opinions of its regard- witnesses’ viewed the disputed matters to be issues ing the risk of contamination if APHIS’s properly more addressed proposed conditions are imposed, as well of an preparation EIS. disputes as to resolve plaintiffs’ wit- nesses.” This evidence concerned the de- here, at issue inas gree damage. of the risk of environmental Watersheds, Idaho typical perma is not a documentary There were voluminous sub- injunction, nent which is of indefinite dura missions from disputing, among both sides tion. A to ensure things, other genetic the likelihood of compliance with NEPA a more has limited Thus, tamination of non-Roundup Ready purpose and duration. Idaho Wa- quired injunction would be in tersheds, involving a viola- was that the NEPA a case evidentiary necessary held that an tion, place only court until the environmen- this an issuing before required not hearing Id. was tal conducted. In this studies were dis- 831. We See Watersheds, case, the govern- as in Idaho Microsoft, from this context tinguished a ment contend that further hear- does not injunctive princi- setting,” and the “normal in order ing required, perhaps to avoid involved Idaho Watersheds pally because duplication the of resources described place that be in measures would interim in Idaho The dissent insists Watersheds. completed, at the EIS was which only until hearing gov- that the remanding on “extensive point parties would have ernment contended would be has never of which input” into the determination appropriate in this case. adopted permanently. measures would The district court here considered exten- 831; Mont. Wilderness Ass’n Id. at accord evidentiary par- sive submissions from all F.Supp.2d 1155-56 Fry, remedy to the pertaining specifically ties (D.Mont.2004) that, (holding under Idaho to do. Mi- phase, required as it was See Watersheds, evidentiary was hearing an crosoft, (holding 253 F.3d at 103 that dis- in- imposing interim required not relief). failing trict erred in court had consider junctive The district court there evidentiary the remedies-phase to avoid the catch-22 situation sought submis- defendant). evidentiary re- hearing where an would hearings sions of It held two quire the same of exten- perform type it to during phase, the remedies one of which that into environmental effects inquiry sive president testimony included from require govern- EIS will the ordered Forage scope of prelimi- Genetics on the perform. Idaho Water- ment injunctive nary It then relief. determined sheds, agreed F.3d at 831. We hearing that should not conduct a that that approach, holding court’s the district in duplicate prepar- would APHIS’s efforts hearing was evidentiary required ing the court. EIS ordered were because the measures “interim meas- stating The thus incorrect in dissent is designed process to allow for a ures that failed to district court hold an permanent take which will determine place evidentiary hearing because district measures, parties and all will have ade- hearing court on the held one nature of the quate opportunity participate in the de- violation, hearings NEPA two (and permanent if termination measures relief, included which testimo- court).” challenge the need be outcome ny president, from Forage Genetics’ Id. that requiring hearing observed We documentary reviewed extensive submis- duplicate the BLM’s and di- would efforts relating appropriate remedy. sions to an from vert its resources those efforts. Id. do What the court did not was to district correctly district court here The denied evidentiary hearing hold an additional pre- because the same situation is very disputes resolve over risk of sented this case. environmental harm APHIS would Monsanto and Genetics also have to in the EIS. is the consider Nor that even if Idaho au- tend Watersheds dissent the district court correct entry of a thorizes given should have conclusive deference to so hearing, without does mitigation the limited measures APHIS only adopts agency’s if the court rec- remedy phase. proposed during the explained ommendation. We in Idaho Wa- tersheds, however, pro- all of adopted APHIS’s key that the reason evidentiary hearing posed pertained further not re- to alfalfa conditions already But planted. that was because the tion that could occur if the district court already determined that future enjoin did not the further planting of enjoined pending planting should the Roundup Ready alfalfa while pre- EIS, impose court declined to APHIS’s the pared the parties EIS. Given that the dis- -permitted that would fu- conditions have puted for, the underlying facts the need circumstances, planting. ture Under these of, any injunctive relief, the first there was no abuse of discretion. recognized exception evidentiary to the injunction only The involved interim hearing requirement was unavailable. See pending compliance measures APHIS’s Charlton, 841 F.2d NEPA, and the district court consid- The second recognized exception was remedies-phase extensive ered evidence. unavailable too. As the district court not- in declining The court did not err to hold a ed, Monsanto and Forage Genetics re- hearing entering injunc- further before the quested an evidentiary hearing “apparent- the pending agency’s completion tion ly so the study environmental the law Court can undisputedly viability assess the perform it to required approving its opinions witnesses’ regarding the risk product this for unrestricted use. of contamination if APHIS’s proposed con- imposed, ditions are as well as to resolve The district court’s order is AF- disputes with plaintiffs’ witnesses.” In FIRMED.

discussing Monsanto’s and Forage Genet- SMITH, RANDY Judge, N. Circuit ics’ request for an evidentiary hearing, the dissenting: majority notes APHIS’s request failure to an evidentiary hearing. failure, This how-

The district failure to conduct court’s ever, insignificant requisite evidentiary given hearing prevents Monsanto joining me from majority’s opinion. already Genetics had made majority correctly The recognizes that the request. their Because the parties did not required district court was an conduct proceed consent to without an evidentiary evidentiary hearing before issuing per- hearing, the other recognized exception to injunction manent under Federal Rule of evidentiary hearing requirement was (1) Civil Procedure 65 unless the facts facts, unavailable. See id. Given those (2) undisputed; were or party adverse should reverse to allow the district court to expressly right waived its evidentiary to an conduct evidentiary hearing. But that Charlton, hearing. Charlton v. Estate of is not what majority does here. 989(9th Cir.1988). 841 F.2d Despite majority The instead relies on Idaho recognizing clear precedent, this the ma- Hahn, Project Watersheds jority affirms the district court’s decision (9th Cir.2002), proceed altogether create requisite without the evidentia- and, ry exception new hearing, in so to the doing, hearing creates an altogether new exception requirement. to the majority that, evidentia- The reasons ry hearing requirement we recognized because the only will last as Charlton. long EIS, takes APHIS to conduct an typical permanent this is not a majority

The acknowledges that requiring typical procedural safeguards. sharply disputed by facts were parties. majority next sure, assumes that an eviden parties To be disputed almost tiary hearing would every element of result in waste of the facts underlying the resources, proposed injunction. Specifically, par- ties disputed genetic the risk of require contamina- would consideration of the same description. in record resolve a The instead indi- that APHIS must

issues the cates that the district court held' six hear- junction with EIS. motions In five ings by parties. on the majority correctly recognizes, we theAs by lawyers hearings, only argument these to con- the district court’s refusal affirmed In hearing Forage heard. was one Genet- evidentiary in Idaho Wa- hearing duct president ics Mark McCaslin was allowed light temporary in of the nature tersheds parties without the speak to notice to or injunction. isn’t Idaho of the But this .case opportunity for cross-examination. There, court de- the district Watersheds. the agency’s ferred to recommendations majority that the argues The district temporary in a in- expertise granting and need an evidentiary court didn’t to conduct in an resulting efficient junction—thereby hearing, because it held the aforemen- agen- pending of the completion resolution hearings, documentary tioned submis- in' Conversely, this cy determinations. sions, and had the of this testimony benefit case, rejected expressly the district court respect from Mr. McCaslin. due to With indepen- and proposed injunction APHIS’s McCaslin, counsel and this both Mr. falls dently fashioned far short of the we have articu- standards testimony sub- the benefit of live without issuing hearing prior lated for In ject process. to the adversarial its injunction. hearings by The cited the ma- opinion, majority notes that revised the by jority simply arguments were counsel the court “deferred to the and construing the written submissions and proposed ‘the relevant conditions adopted documentary Although helpful, evidence. ” by the APHIS.’ the district court What by and argument documentary counsel only regard was defer to with did are for live submissions no substitute testi- concerning to its recommendations the al- determining mony when comes to the deference, ready howev- planted, RRA. No alleged injury, nature and extent of the er, given proposal to. APHIS’s lies, and hardship where the balance of the completion of the “prior APHIS’[s] EIS scope of the Based on this can grown, ... RRA harvested and record, Mr. McCaslin’s statement was little used, provided is in accordance with six than no testimony. better stringent, requirements science-based de- The district court have used signed mitigate potential the environ- could the the, specified by hearing mental this Court.” to better ascertain harms By picking choosing when to afford the alleged injury nature of further deference, the court’s deference is tanta- the hardships understand balance of the mount to no deference at all. These short- varying pro- parties’ associated the comings resulted a critical failure injunctive for It didn’t. posals relief. parties court and deprived district court have used also could procedural when it important rights came hearing parties’ to test the merits potential in- shaping scope any evidentiary hearing An positions. would junction. for have allowed cross examination testimony on witnesses their written

In amended opinion, majority the district court submissions. Instead re- “held states district court one jected agency’s proposal and fashioned on the the NEPA nature of viola- on permanent injunction its own based ar- on the hearings tion two [and] record, counsel, gument of the written majority relief....” While testimony hoc from Mr. McCaslin. hearings like to ad would describe manner, shortcomings significant, the record not confirm such These are be- does might the district court have tionwide has severe economic cause result had it held an Monsanto, reached different consequences Ge- evidentiary hearing reaching deci- netics, and for the farmers and distribu- sion. planned tors who RRA alfalfa being I available. would be more comfortable hearing,

In such a the district did injunction with a nationwide had the dis- very disputes not need to resolve the over evidentiary trict court held an hearing to harm that the risk of environmental consider might differently testimony, resolve in an live listened to cross examination, majority the contends in its any EIS—as and resolved credibility opinion. only amended It needed to de- issues the between witnesses. But no cide, witnesses, listening observing the occurred, such I therefore what it would do in the mean time. The have no confidence the need for a na- district court failed to do so. injunction pending completion tionwide the EIS. evidentiary hearing requirement it allows the district essential because By affirming the district court’s refusal opportunity court an to consider the wit- evidentiary to conduct an hearing, the ma- credibility the face of cross ex- nesses’ jority exception has created a third to the step justifies is what amination. That the evidentiary hearing requirement. Under of review un- abuse discretion standard decision, this a district court can now fore- der which consider a court’s go conducting evidentiary an hearing sim- grant deny injunctive decision to or relief. (1) ply injunction the may dissolve requisite If a district court evi- skips (2) issues, at some point and to be dentiary hearing, exactly we have raised at hearing, overlap with the appeal same record on as the district court the agency issues must consider in making circumstance, I did below. In see no a final regarding controversy. decision any reason to afford the district court dis- Instead of giving agency’s deference to the reviewing cretion when its decision to expertise, see The Lands Council v. grant deny injunction. or an For that McNair, (9th 981, 987-88, 991-93 reason, I it to an consider abuse of Cir.2008) (en banc), majority gives def- for a discretion district court not to hold n court, despite erence to the district hearing unless the case fits rejection agency’s propos- wholesale of the in either recognized excep- of the Charlton injunction al for an and its failure to hold accepts agen- tions or the district court evidentiary hearing. There aren’t cy’s proposal temporary injunctive re- many environmental cases that don’t fit lief, as occurred in Idaho Watersheds. the majority’s newly-created excep- into record, Based on this I have serious mistake, tion. This is a it would elimi- scope concerns about the of the nate a “significant procedural step[,]” best, entered the district At court. Charlton, any 841 F.2d at without real sparse hay-to- record reflects evidence of justification. I would instead remand so hay gene transmission of RRA alfalfa in that .the district court could conduct an country some areas under certain evidentiary hearing on the merits and Further, planting conditions. I see no good hay-to-seed evidence or seed-to- gene seed transmission. Yet the district

court entered a nationwide planting Roundup Ready completes

while APHIS an EIS. This na-

Case Details

Case Name: Geertson Seed Farms v. Johanns

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Jun 24, 2009

Citation: 570 F.3d 1130

Docket Number: 07-16458, 07-16492, 07-16725

Court Abbreviation: 9th Cir.